The Court also suggested some alternative drafting for such clause where the result could have been different.
The case involved the Principal (AVANZALIA, an energy provider) and its Agent. According to the agency contract, clients should remain at least one year with such provider. The agency agreement included a so-called “claw-back” clause according to which the termination of the contracts with clients, whatever the cause, before such term of one year implied the return of the commission by the agent. The agent was, therefore, obliged to pay back the amounts perceived when the contract with clients lasted less than one year.
Under Spanish Agency Act (17; comparable to Article 11 of the Directive), the agent loses the right to the commission if the Principal proves that the operation —concluded by the intermediation of the agent— was not performed for reasons not attributable to the Principal.
For this reason, the Court concluded that a “claw-back” clause in an Agency agreement according to which the agent loses his commissions in case of a non-enforcement of the contract “whatever the cause” does not comply with the provisions of the Agency Act and therefore is null and void.
It is also interesting in this Judgment the suggestions made by the Court. In fact, the Court suggests that things could have been considered differently if, for instance, the agreement had stated that the commission was not due until the course of one year of effective supply, that the right to the commission was deferred to one year after the contract was formalized, that the initial entitlement to the commission was provisional or subject to a suspensive or resolutory condition, that the commission was something provisional or on account, or providing for payment of an initial sum and another at the end of the first year. This was not the drafting and the clause stated the entitlement to commissions, its payment and its return under conditions other than those required by the law.
Ignacio Alonso, IDI country expert for agency & distribution in Spain.